Inspector Robert Egan v Coles Supermarkets Australia Pty Ltd trading as Coles Supermarkets [2006] NSWIRComm 7 (13 July 2006)

Last Updated: 13 July 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Robert Egan v Coles Supermarkets Australia Pty Ltd trading as Coles Supermarkets [2006] NSWIRComm 7

FILE NUMBER(S): IRC1339

HEARING DATE(S): 08/12/2005

DECISION DATE: 02/02/2006

PARTIES:

Prosecutor:

Inspector Robert Egan

Defendant:

Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets

JUDGMENT OF: Kavanagh J

LEGAL REPRESENTATIVES

Prosecutor:

Mr P.M. Strickland SC

Solicitors:

Mr G.Phillips/Mr M. Selinger

Carroll & O'Dea

Defendant:

Mr H.J. Dixon SC

Solicitors:

Ms J. Patterson

Minter Ellison

CASES CITED: Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 (at 644)

(2000) 99 IR 29

Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch’ng) (1999) 90 IR 432

Markarian v R (2005) 215 ALR 213

R v Sharma (2002) 54 NSWLR 300

R v Thomson, R v Houlton (2000) 49 NSWLR 383, (2000) 115 ACrimR 104

State Rail Authority NSW v WorkCover Authority of NSW (Inspector Dubois) (2000) 102 IR 218

Tyler v Sydney Electricity (1993) 47 IR 1

WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80

WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182

WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121

WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248

WorkCover of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383

LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(2)

Crimes (Sentencing Procedure) Act 1999 ss21A 22 23 34

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Kavanagh J

Thursday 2 February 2006

Matter No IRC 1339 of 2005

INSP ROBERT EGAN v COLES SUPERMARKETS AUSTRALIA PTY LTD t/as COLES SUPERMARKETS

Prosecution under s8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2006] NSWIRComm 7

1 This prosecution is brought by Inspector Robert Egan of the WorkCover Authority of NSW against Coles Supermarkets Australia Pty Ltd t/as Coles Supermarkets (the defendant) and issued under s8(2) of the Occupational Health and Safety Act 2000 (the Act).

2 It is alleged the defendant breached s8(2) of the Act in that it:

DID FAIL, contrary to Section 8(2) of the 2000 Act to ensure that people (other than employees of the Defendant employer) and in particular Joe Howa, were not exposed to risks to their health or safety arising from the conduct of the Defendant employer’s undertaking while they were at the Defendant employer’s place of work.

3 The particulars of the charge are:

The Defendant, on 23 December 2003, being an employer at the site, did fail, . . .

In particular, .... to provide and maintain a safe system of work in relation to the delivery of goods at the site's loading dock. The Defendant's traffic management plan was inadequate to protect persons such as Mr Howa from risk to injury of being struck by a loading truck.

The Defendant failed to ensure a system of work that required the loading dock area to be free of persons whilst a delivery was being made and trucks were reversing or moving in the loading dock area.

4 The defendant pleaded guilty to the charge.

5 An agreed statement of facts was tendered which relevantly reads as follows:

3. At all material times, the Defendant's business involved operating a large chain of grocery stores across Australia including one situated at the corner of Freya Street and Bates Drive, Kareela, in the State of New South Wales ("the site").

4. At all material times, the Defendant was an employer at the site.

5. At all material times, and in particular on 23 December 2003, the site, including the loading dock located there, was the Defendant's undertaking.

6. At all material times, and in particular on 23 December 2003, the loading dock at the site was the Defendant's place of work.

7. On 23 December 2003, Joe Howa ("Howa") a self-employed truck delivery driver trading as JH Refrigerated Taxi Trucks Pty Limited, was undertaking a delivery to the Defendant on behalf of Melosi Fine Foods.

8. At the same time, a Mr Victor Pazos-Dos-Santos ("Santos") was undertaking a delivery to the Defendant on behalf of "Mrs Crocket’s".

9. Santos had backed his truck into the loading dock and it was parked about one metre and a half away from the edge of the dock. Howa was standing on the ground near Santos's truck. Howa's truck was parked around the corner.

10. At that time, Metodia Markovski ("Markovski"), an employee of the Defendant, employed as a full time storeman at the site, had a discussion with Santos to the effect that there was a discrepancy in the number of boxes Santos was to deliver. Santos returned to his truck in order to check his delivery. At that time, Markovski spoke to Howa who advised him that he had only a few boxes to deliver and requested that Markovski accept them before Santos. Markovski advised Howa that he would accept them.

11. Howa went to this truck and then returned to the loading dock with the boxes and his invoice. He delivered the boxes and Markovski signed his invoice.

12. Howa then turned to leave when he realised Markovski had not signed his "run sheet". Howa then walked back to the loading dock and stood at the edge of the dock between Santos's truck and the edge of the loading dock.

13. At approximately that time Santos went to the cabin of his truck and started the truck. The truck commenced to move in reverse crushing Howa between the back of the truck and the edge of the loading dock. There were no warning sounds, such as reversing beeper observed as the truck reversed. Markovski and another employee of the Defendant, Brendon Monger, called out to Santos to move his truck.

14. Once the truck moved forward, Howa collapsed to the ground. Brendan Monger, a Trainee Manager of the Defendant called for an ambulance and a number of the Defendant’s first aiders arrived to help Howa. The ambulance and the police rescue squad arrived and Howa was transported to hospital. Howa suffered fractured ribs, a broken pelvis, internal bleeding, damage to his abdomen, liver as well as injuries to his lower and upper back. Howa was in hospital for approximately three months following the incident and to date has not returned to employment as a truck driver.

15. At the time of the incident, the Defendant did not have in place an adequate system of work in the loading dock area to ensure that it was free of persons whilst a delivery was being made and trucks were reversing or moving in the loading dock area. The Defendant's traffic management plan was inadequate to protect persons such as Mr Howa from risk to injury of being struck by a loading truck.

16. Following the incident, the Defendant took the following action:

(a) Before re-opening the loading dock, the store manager at the site advised the staff working that only one delivery was to be received at one time and that there was to be no pedestrian access to the dock area whilst trucks were in motion.

(b) The following day, the store manager of the site drafted a memo to go to all staff working in the loading dock which stated the following:

Attention all Authorised Receiving Staff 23.12.03

Following the incident that occurred today at the back dock where a delivery driver was crushed between a delivery truck and the dock leveller. The following procedures must be adhered to:

· Deliveries must be accepted one at a time.

· Staff to instruct all delivery drivers to stay in the cabin of their trucks until such time as they are requested to unload their truck.

· All incoming goods are to be received through the receiving area by the stock hand or authorised staff.

· Unauthorised persons are not permitted in the stock room unless accompanied by an authorised staff member. Drivers are not permitted to enter the stock room past the painted line and signage."

(c) A painted yellow line was marked at the loading dock area to display the safe pedestrian route.

(d) Bollards were installed to prevent two trucks entering the dock at one time.

(e) Signage was placed at the entry to the loading dock and also at the receiving dock area to communicate the standards to truck drivers and to suppliers of the new procedure.

(f) Reflective vests were also issued to all staff.

.......

6 A supplementary agreed statement of facts was tendered which relevantly reads as follows:

1. Following the accident Santos, the driver of the vehicle which injured Howa, was charged by the police with grievous bodily harm by a negligent act.

2. The prosecution hearing against Santos was heard on 26 November 2004 in the Sutherland Local Court.

3. The particulars of the charge were as follows:

on 23 December 2003 at Kareela at 1.10pm that [Victor Manuel Pazos Dos Santos], did by a negligent act...started a motor vehicle whilst standing outside the vehicle whilst the vehicle was in reverse gear causing the vehicle to lunge rearwards causing grievous bodily harm to Joe Hawa,[sic] [Victor Manuel Pazos Dos Santos] being at the time in charge of the vehicle being a Toyota Dina panel truck registration number UDB-519

4. By turning over the ignition, and standing at the side of the truck, Santos was not in a position to actively brake. He was not in a position to engage a clutch, which may have disengaged the reverse and he made no observation or attempt to make observation, prior to engaging the truck, that the handbrake was fully engaged or alternatively, that the vehicle was in neutral.

5. Santos was convicted of grievous bodily harm by a negligent act and was placed on a good behaviour bond for a period of 12 months.

7 Mr P.M. Strickland, S.C., appeared for the prosecution in the hearing as to penalty. An Agreed Statement of Facts and a supplementary Agreed Statement of Facts was relied upon. The prosecution also tendered 20 photographs of the site, a Factual Inspection Report, two Job Safe Practice documents, a Safety Alert document dated August 1999, a Prior Conviction Statement and an Agreed Statement of Facts in matter No CIM 98/320 (relating to the Prior Conviction Statement).

8 Mr H.J. Dixon, S.C., appeared for the defendant. Mr Dixon relied upon an affidavit, with annexures, of Grant Harold Palmer, Operations Manager for Coles Supermarkets Australia Pty Ltd sworn 20 October 2005. The annexures outlined the existing safe work methods in place before the incident and the redesigned safe working procedure development post the incident. Through Mr Palmer, Mr Dixon also tendered, on behalf of the defendant, a document entitled Coles Care.

Principles

9 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours’ view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999) and the court, using the “instinctive synthesis” approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

10 Their Honours recognised the “instinctive synthesis” approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing Court engages in a “staged sentencing process” starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at[32]).

11 The proper approach to sentencing as approved by the majority (Gleeson CJ and Gummow, Hayne and Callinan JJ) in Markarian was stated as follows:

[27] Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence (Pearce v The Queen (1998) 194 CLR 610 at 624). And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies (Johnson v The Queen (2004) 78 ALJR 616 at 618, 624).

and the sentencing process should reflect the general obligation on a judge to reveal his/her reasoning:

[39] ...Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. ...

Their Honours reasoned further:

[39] . . . . That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing Judges should be absolutely forbidden. An invitation to a sentencing Judge to engage in a process of ‘instinctive synthesis’, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression ‘instinctive synthesis’ may then be understood to suggest that an arcane process into the mysteries of which only Judges can be initiated. The law strongly favours transparency.........There may be occasions when some indulgence in an arithmetical process will better serve these ends.

12 In Markarian the High Court endorsed instinctive synthesis approach to determine penalty, McHugh J saying:

[84] The synthesising task is conducted after a full and transparent articulation of the relevant considerations including an indication of the relative weight to be given to those considerations in the circumstances of the particular case. The instinctive synthesis approach does not prevent the use of adjectives or adverbs or indications that this or these factors makes or make the case more or less serious than other cases or are the critical features of the case. And judicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate. The judicial wisdom involved in the instinctive synthesis approach is therefore likely to lead to better outcomes than the pseudo-science of two-tier sentencing. At all events, I am not satisfied that two-tier sentencing is a better method or process than the instinctive synthesis method that has been the traditional approach of common law judges.

and:

[138] . . .Yet even this is not now absolute. Specification, in a staged or sequential approach, of the degree of reduction of what would otherwise have been the penalty for a plea of guilty is, it seems, sometimes permissible (Joint reasons at [38]). So presumably is re-adjustment for any assistance to authorities. So indeed, by statutes in many parts of Australia, must now be specific reductions and adjustments expressed in terms of identified quantification or percentages. Even occasionally (albeit in unexplained circumstances) arithmetical indulgence will now, it seems, be overlooked. However, preferably that will happen only where the factors adjusted are comparatively few and the case is "simple" (Joint reasons at [39]).

[139] ... Australian judges must now express their obeisance to an "instinctive synthesis" as the explanation of their sentencing outcomes. It might be prudent for them to avoid mention of "two stages" or of mathematics. ...

13 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 MSWLR 383; (2000) 115 A Crim R 104 correctly, given the consideration in Markarian, endorsed the “instinctive synthesis” approach to sentencing saying:

[57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

14 In R v Sharma (2002) 54 NSWLR 300, the Court of Criminal Appeal sitting five Judges (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) concluded specifying the “discount” allowed for the utilitarian value of a plea of guilty was both consistent with s22 of the Crimes (Sentencing Procedure) Act 1999 and the “instinctive synthesis” approach to sentencing.

CONSIDERATION

15 The defendant pleads guilty to a charge that it failed to provide a safe system of work for the delivery of goods to its dock area. Two particulars are relied upon to establish the offence namely:

1. The defendant’s management plan was inadequate to protect persons such as Mr Howa from risk to injury of being struck by a loading truck.

and

2. The defendant failed to require the loading area of the dock to be free of persons whilst a delivery was being made and trucks were reversing or moving in the loading dock.

16 The dock area of the relevant Coles Supermarket had two receiving bays but only one bay was regularly in use. On the day of the incident, a delivery worker, Joe Howa, who was a self-employed driver, made a delivery on behalf of Melosi Fine Foods to the Coles Supermarket. Victor Pazos-Dos Santos was also making a delivery for another company. Mr Dos Santos had backed his delivery truck into one of the loading docks. Mr Howa, however, had parked his truck outside the dock area and was making what they call in the trade “a walk up delivery”.

17 At the time of the incident Mr Howa had entered the dock delivery area and was standing behind Mr Dos-Santos’ truck placing himself between the truck and the loading dock. He was reaching up to a Coles employee standing above him on the dock receiving platform to have his delivery docket signed.

18 Mr Dos Santos returned to the cabin of his truck. He turned on the ignition of his delivery truck while standing outside the truck, causing his truck to reverse. Mr Howa was crushed between the back of Mr Dos Santos' truck and the edge of the loading dock. It was agreed the truck did not sound a reverse beeper. The truck had been left in reverse gear.

19 The defendant’s traffic management plan in place at the time of the incident allowed its employees to accept deliveries without requiring a driver's delivery truck to back into the loading dock. That system allowed a person such as Mr Howa to be on site without any co-ordination required between the movement of trucks and a delivery and, therefore, without the co-ordination of driver activity linked to the movement of trucks. Relevantly, the system of work in place permitted multiple deliveries to occur at the loading dock.

20 The policy now in place requires that persons who are not employees of the defendant are not permitted in the dock area whilst a truck is moving; there is now instruction that a delivery driver is not permitted to leave his/her truck until requested to unload the delivery; there is now signage in place warning drivers of the dangers of standing or moving in and around the dock area, the delivery drivers are now given information and training in the system designed for the safe receiving of goods in the dock area.

21 In the assessment of the objective seriousness of the offence the defendant submitted of relevance to the court’s consideration is that the incident occurred as a result of an unusual and unforseen set of circumstances. The relevant risk it was submitted did not arise as a result of the usual movement of trucks in the loading area but as a result of the actions of Mr Dos Santos. Mr Dos Santos' action caused the vehicle to move backwards in circumstances where he had no means of braking or otherwise influencing the movement, as a driver in the normal circumstances would and such circumstances had never manifested themselves before. In consideration of these facts, the defendant submitted, the Court would determine the offence was not foreseeable.

22 The defendant further submitted as Mr Dos Santos' negligent act played a part in the injuries suffered by Mr Howa, such a fact should be perceived as an aggravating factor to be given weight in the determination of penalty in accordance with s22 of the Crimes (Sentencing Procedure) Act 1999.

23 The charge before the Court is the exposure of a person at the worksite to a risk of injury. That risk became a reality arising from an unsafe system of work which under the defendant’s traffic management plan was inadequate and did not protect persons, such as Mr Howa, from the risk of injury by the movement of vehicles in the loading dock. Mr Howa suffered serious injury.

24 The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5) I find apposite in the circumstances while the:

gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant ...

25 The identified risk was the failure to ensure the safety of drivers who were permitted under the previous system of work to make "walk up deliveries". There was in existence no safe working procedure in place to protect drivers making deliveries in this manner. The defendant in effect pleads mitigation to the assessment of the objective seriousness of the offence, while acknowledging its guilty plea, but asserting the risk did not arise from the usual movement of trucks in the loading dock. The offence was aggravated as a result of the negligent actions of Mr Dos Santos, it is submitted.

26 A number of authorities guide my consideration of these submissions. Reasoning from the actual incident causing injury may well lead the court into error (WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 288 – 289 [20]). In WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182, Walton J, Vice President at [68] said:

It is now axiomatic that the general duties created by the Act are directed at obviating risks to the safety of persons in the workplace: see Haynes v C I &D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 452 - 454 and WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at (253 - 254). Frequently a prosecution will be commenced following, and by reference to, an accident which results in injuries being sustained by an employee or other person. The occurrence of that accident may provide an indication of the existence of a risk to the health and safety of persons in the workplace and the gravity of that risk. However, the duty imposed by s16(1) of the Act is broader than simply imposing a liability in relation to a particular accident . . . .

And the Full Bench in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch’ng) (1999) 90 IR 432 (at 452) stated:

The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

27 In WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80 at [47] the Court through Hungerford J referred to the "positive duty" under the Act to secure the health, safety and welfare of persons at work. His Honour criticised the:

... undue reliance on the actual occurrence of the ... (incident) and the immediate reasons therefor (sic) in determining whether the defendant relevantly failed to ensure the safety of .... (the workers).

and

Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 (at 257) also considered a similar submission saying:

... the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. ...

and

In State Rail Authority NSW v WorkCover Authority of NSW (Inspector Dubois) (2000) 102 IR 218 (at 231) the Full Bench stated:

. . . inattention or mere inadvertence of an employee serves to show only the need for an employer to be astute in ensuring safety and in meeting all reasonable contingencies . . .

28 I accept Mr Dos Santos may well have been negligent either in how he turned on the ignition of his truck or in leaving the truck in gear and there was therefore a negligent act on the part of Mr Dos Santos in causing the reverse movement of his truck. There was also no system in place for the acceptance of walk-up deliveries and the necessary co-ordination of the movement of drivers with the movement of vehicles at the dock in such a circumstance. I accept Mr Dos Santos' act is of relevance in that it contributed to the risk on the relevant day. However, the risk to safety, in breach of the defendant's obligation under the Act, was a risk of a continuous nature in that the defendant did not have in place a safe system of work. In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2003) 123 IR 121, the Court commented:

[101] . . . the respondent extrapolated the fact that it was charged with an offence limited to a single day to an assertion that it could not be expected to "check on the actions . . ." on "a minute by minute basis". Such a submission (a) has no relevance to charges which prove failure to provide a safe system (a system necessarily being required on a continuous basis), (b) involves a serious misunderstanding of liability under the Act, particularly where a systems charge is laid . . .

29 I do not accept the risk arose from the unusual movement of a truck but rather the failure of the defendant's system of work, and its management plan, to safely co-ordinate the movement of a driver making a delivery with the movement of vehicles within the dock area. I find therefore there was an element of foreseeability to the offence.

30 A level of deterrence must be factored into consideration. This principle was cited by the Full Bench of the Commission in Court Session, with approval, in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 (at 644); (2000) 99 IR 29 (at 60) where it was said:

... the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (Inspector Page) v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . .

31 Coles made speedy adjustments to its system of work in order to ensure that no more “walk up deliveries” were accepted at the dock area. Relevantly, staff and regular delivery drivers were immediately instructed:

1. Deliveries were to be accepted one at a time.

2. Delivery drivers were to stay in the cabin of their trucks until requested to unload.

3. Incoming goods were to be received by a stock hand.

4. Unauthorised persons were not permitted in the bay.

Letters were issued to suppliers outlining the above requirements and emphasising the need for delivery drivers to wear high visibility/or reflective clothing.

32 On examination of the amended system of work, I am satisfied that a rigorous review was undertaken of the procedures to be followed in all Coles Supermarket delivery docks and there was put in place a new procedure for the instruction of Coles staff and its suppliers. An examination of the policy reveals considerable expenditure by the company in the redesign of its working procedures. The system now reflects a commitment to rehabilitation. There is also a communication system to ensure adherence to the new system of work.

33 Mr Dixon SC, for the defendant, further submitted that given the introduction of a revised system of work almost immediately put into place and the rigour with which it has applied, there would be no weight given to specific deterrence in the Court’s assessment of penalty. I accept the weight given to the specific element of deterrence will not be at that level referred to in Capral at [74] as that of “some substance”. Nonetheless, I include in my consideration the element of specific deterrence as the company was responsible for a risk to safety in its most potentially dangerous work area, the dock area, which area attracts the continuous movement of persons and trucks. The risk to safety exists and remains a possibility (Capral at [77]). I accept however the defendant has not manifested, by the commission of this offence, a continuing attitude of disobedience to the law, or a likelihood that any offence of like kind will be committed in the future.

34 There must also be an element of general deterrence factored into penalty to ensure the fundamental obligation for safe working under the Act is once again brought to the attention of employers. Generally, loading docks are very busy areas and particularly so in supermarkets where deliveries of fresh foods are made on a daily basis. Generally high activity areas, especially during busy times of the year, require rigor in the co-ordination of the movement of persons and vehicles. Systems of work must reflect the fundamentals for safe working and in this circumstance the system in place did not acknowledge the potential risk in accepting this style of delivery. The defendant's traffic management plan was inadequate.

35 However, I do not accept the second particular relied upon has been established. There was no evidence to persuade the Court, as recited in the charge, that the dock area for a delivery need "be free of persons." As a matter of practicality there is always a need for a driver and a receiver to be in attendance in the dock area. Nonetheless I find the offence proven given there was a substantial failure to have a safe system of work in place and I find it was a serious offence.

36 In consideration of penalty, a number of subjective features have been placed before the Court. The defendant entered an early plea of guilty. It co-operated with the WorkCover Authority in its investigation. The defendant immediately took remedial steps to ensure no further recurrence and following the incident, rigorously examined its system of work and reviewed it. In doing so, it ensured a substantial allocation of resources to promote and communicate the newly devised systems both to its employees and to the service delivery personnel. I am satisfied all contractors making deliveries to the defendant's premises are now well trained and while originally there was some reluctance, such drivers now accept and there is compliance with the rigor of the changes which have been put in place.

37 I am satisfied the defendant is a fine corporate citizen. It endeavours to assist the less fortunate, especially children, in need and its endeavours are perceived as significant, particularly effective and valuable to the community.

38 The industrial record of the company, however, indicates that between 1994 and the date of the hearing, there have been seven prior convictions recorded. It can be assumed that they were not perceived as serious offences given each charge was laid before the Chief Industrial Magistrate. Small penalties were applied to the offences. The defendant submitted that given the size and extent of its operations conducted in high activity environments, the recorded incidents be perceived by the Court as reflecting what could be termed a good industrial record. The defendant submitted none of its previous offences occurred in the same area of work or reflect an omission of the same kind as the breach before me.

39 The prosecutor, as to the prior industrial record of the defendant, submitted it conceded the industrial record demonstrated a reasonable to good history of compliance in occupational health and safety matters, especially in the context of the large number of employees of the defendant. I accept the submission of the prosecutor as to the weight to be given to the prior industrial record of the company. Given the industrial history of the defendant, the provisions of ss4 and 12(a) of the Act come into effect and the maximum penalty for the offence is $825,000.00.

40 The defendant further submitted the principle of parity should be applied in the consideration as to penalty. Mr Dos Santos was found guilty of negligent driving. He received 12 months good behaviour bond for causing grievous bodily harm. Reliance was placed on the words of Walton J, Vice-President in WorkCover of New South Wales (Inspector Ankucic) v McDonalds Australia Limited & Anor (2000) 95 IR 383 where his Honour held (at 435):

. . . the Court should nonetheless adopt an approach to sentencing which "shows consistency and not disparity in punishment ...”

However, his Honour also went on to note (at 436):

... the principle of parity only operates to the extent of comparing like with like.

His Honour then held (at 436):

Insofar as the defendants' submissions are based squarely upon the principle of parity or equal justice, they find no foundation in Lowe ((1984) 154 CLR 606) or Postiglione ((1997) 189 CLR 295). ...

41 The defendant submitted any inconsistency in punishment between the defendant and Mr Dos Santos would be calculated to lead to the erosion of public confidence in the integrity of the administration of justice. There is no requirement for parity where the offences are not identical (R v Watson CCA (NSW) (unreported decision of 25 February 1992) applying R v Wurramarbra (1979) 28 ALR 176; 1 ACrimR 291). I find there exists diverse objective and subjective circumstances between the two defendants – namely, this company and the driver Mr Dos Santos (R v Gibson (1991) 56 A Crim R 1). Notwithstanding the charges relate to the same incident, the charges are not similar, the objective and subjective circumstances of each charge is diverse and there can no be comparison made of like with like; the available maximum penalties are substantially different in nature and further the defendant company has been given, in the consideration by the court of the objective seriousness of the offence, an acknowledgement that Mr Dos Santos' act contributed, in a small way, to the risk. The integrity in the administration of justice I do not accept is challenged by rejecting the application of the principle of parity in this circumstance. I find therefore the principle of parity is not applicable.

42 I allow 25% for the utilitarian value of the early plea (see Markarian and R v Thomson; R v Houlton).

43 Taking into account the seriousness of the offence and the subjective criteria placed before me, I find the offence proven and the defendant guilty. The defendant shall pay a fine of $130,000.

44 I make the following orders:

1. I find the offence proven.

2. I find the defendant guilty.

3. The defendant is fined in the sum of $130,000.00 with a moiety to the WorkCover Authority.

4. The defendant shall pay the prosecution's costs as agreed at $12,787.00.

LAST UPDATED: 13/07/2006